Why was I detained?

The man, known by the alias Penjore Penjore, is seeking answers per se the Constitution on what legal grounds has he been detained by the OAG and without a court warrant.

By Tashi Namgyal

Even after 16 days being out of the detention centre, the one question which pertinently lingers in the mind of Penjore is the grounds on which he was even detained in the first place by the RBP following a complaint from the Office of the Attorney General (OAG).

He claims that the Facebook post he made on May 4 was in “keeping with his constitutional rights as enshrined under the constitution” and that he was merely “exercising the freedom of speech, press and media”. Penjore said that it was not a defamation case, in that, whatever he stated in his post was categorically and exclusively all true.

In exercising his rights to freedom of speech, he posted his views on Bhutanese News and Forums under the alias “Penjore Penjore”, concerning BNB forging case on the recruitment of staffs.

Penjore said that his main bone of contention which prompted to write his views on Facebook was on why the BNBL Executive Committee Members’ lapses matter didn’t go together along with the twelve support staffs case to the Thimphu Dzongkhag Court for hearing.

Currently out on bail, Penjore said that the AG should not “institutionalize” and “marginalize” the solemn powers and authority of the seat and the office to fight against him.

“If they felt defamed or anything of that sort for that matter, then they should have filed a defamation case against me as an individualbecause my posts were categorically against them as individuals too,” he said.

Penjore said that while the verdict will be as par with the Constitution and laws of the country, it is the due process which should be clean and clear.

“Only then, if I am proven wrong, I will happily face the consequences. And if they (AG and BNBL Executive Members) are proven wrong, they must accept it too,” Penjore said.

OAG’s stance

According to the OAG, the detention of Penjore was adhered to all due process of the law. It said that while Article 7(20) of the Constitution ensures no person shall be subjected to arbitrary arrest and detention, the Civil and Criminal Procedure Code expressly prohibits pre-trial detention that extends to 49 days for cases of Misdemeanor and below offenses and 108 days for serious offenses and felony on third degree and above.

According to the OAG, the rights to freedom of speech, opinion, expression, thought and conscience falls under the ambit of freedom of expression. Article 7 of the Constitution provides the rights of an individual against the State and also caters to the rights among individuals. However, these fundamental rights are also ‘restrictive in nature’ and have reasonable restrictions.

“The defense of freedom of expression to the rapidly emerging field of online defamation in particular whether existent of the conditions of anonymity or without, has been gravely misconstrued,” a statement from the Legal Services Division, OAG reads.

“In consequence with the lack of legal awareness on the laws, and limits of laws in our society, it continues to perpetuate communication that sows the seeds of distrust and suspicion on the enforcement of laws in the country, undermining the rule of law and principles of due process and natural justice,” it states.

The OAG further states that while freedom of expression is a human-civil, economic, and political right, and a norm of customary international law, it also consists of a negative liberty right against the government owing to the empirical matter on the State being democratic.

“The use of calculated falsehood puts a different cast on the constitutional question. And therefore, even when the freedom of expression may be universal, every contesting case has different nuances on these rights,” it read, reiterating that while honest utterances even if inaccurate is exercising right of free speech, it does not state that the lie, knowingly and deliberately published about a public official, should enjoy a like immunity.

The OAG also cited Section 318 of the Penal Code which surmises that a person can exercise his freedom of speech through any medium in writing or verbal terms if the expression is a bonafide one.

The OAG stated that it cannot overrule liability if there was intended malice involved while filing purported true information because there are normal procedures which are put in place by the law to redress grievances.

It further stated that freedom of speech is not beyond the scope of laws and must be subjected to certain restrain in order to protect and uphold the good reputation, honor, and dignity of a human both in private as well as in public life.

Parliamentary Human Rights Committee review

On the sidelines, Penjor also lodged a complaint to the Parliamentary Human Rights Committee (PHRC) for investigation into violation of his human rights after the Committee’s visit to the detention center on May 11.

Talking to Bhutan TODAY, Chairman of the Committee MP Passang Dorji said that the Speaker of the National Assembly has referred the complaint letter to him. However, the Committee could not assess the case due to the hectic ongoing Parliament session. He said that the eight-member Committee will delve deeper into the case right after the Parliament.

The Committee Members are made up of four ruling and four opposition party MPs.

What experts say

Defamation is a crime under the Penal Code of Bhutan 2004. However, experts say that certain sub-sections are alluding and contradictory in itself, which puts up so many other questions on hold.

Can the OAG can arrest and detain Penjore? Since defamation is a crime under the Penal Code of Bhutan, the Police can arrest him if a person files a complaint of “person”. “Person” includes an individual, partnership, corporation, organization, enterprise, agency, department, subdivision, or other legal entity whether public or private and successor, representative, or agent of one of them.”

Undoubtedly in this case, the OAG is a juristic person under his definition and so it can sue and be sued.

Whether OAG can charge Penjore for defamation. Since OAG is a juristic person, it can sue or be sued and therefore, it can file a case against Penjore. Further, since defamation is considered as a crime and crimes are considered as offenses against the State, the OAG can also file a case against Penjore on behalf of other State institutions, provided they request OAG to prosecute on their behalf.

Whether the OAG can be both the investigator as well as the prosecutor.

When OAG files a complaint for defamation against Penjore, it is the Police who investigate the complaint. Therefore, it is the Police and not the OAG who is the investigator in this case. Since the complaint has been filed by the OAG as a juristic person, the Police will treat it like any other case filed by an individual or a natural person. So, the Police should prosecute the case and not the OAG.

Whether the OAG must seek the permission of the Prime Minister (PM). Under normal circumstances, the OAG is expected to inform and seek the approval of the PM as a body accountable to the PM. However, it is entirely upto the PM what he thinks should be done. Even if the PM gives full authority to the OAG, so shall it be.

Penjore’s case does not involve murder, armed robbery, terrorism or treason. It also does not fall under fourth degree felony but the case is a petty misdemeanor.

It is a compoundable offense which means the offender does not need to undergo imprisonment but can pay a fine instead. Having been detained for weeks before he got a bill, the whole purpose of the law giving a lighter sentence of petty misdemeanor which is compoundable, as opposed to a mandatory imprisonment for a felonious defamation is defeated.

This case will have far reaching implications depending on the Court’s verdict. While it has already opened a floodgate of doubts on fundamental rights, it will also draw the lines between how far can an institution like the OAG stretch the arm of the law and how far can an individual like Penjore exercise his freedom of speech.

However, one thing will be clear-the OAG as a public office and office bearers will have to face a stricter onus to prove that the defamation by Penjore was deeply malicious and had far reaching implications than mere speculation.

Meanwhile, Penjore was finally granted bail on May 21 after 16 days in detention after the RBP reported having submitted their charge sheet to the OAG.